A very unusual legal case will be decided in Montpelier Tuesday. The Vermont Supreme Court will hold a special hearing to determine whether Gov. Peter Shumlin has the authority to appoint a new member to the court.
Shumlin wants to fill a vacancy that won't occur until several months after he's left office. And last week, the court temporarily blocked him from making the appointment.
Audio for this story will be posted.
As far as legal scholars can tell, Vermont has never had a case like this one.
In September, Supreme Court Justice John Dooley announced he would not seek another six year term on the Court. It means Dooley will step down in mid-March when his current term expires.
Gov. Peter Shumlin quickly announced that he wanted to fill the opening before he leaves office on Jan. 5, 2017. But questions arose about whether the vacancy is actually occurring before Dooley's term ends in March. Shumlin says he's confident that he's acting with full legal authority.
"Governors don't stop doing their jobs because they are finishing their terms," Shumlin said in Sepetember. "Vermonters hired me to work as hard as I can to fulfill the obligations of the governor's office, and I think past governors would agree that our job is to do our job until the next governor is sworn in and that's what I intend to do."
"Governors don't stop doing their jobs because they are finishing their terms." — Gov. Peter Shumlin
House Minority leader Don Turner, who petitioned the Supreme Court to block Shumlin from making an appointment, disagrees.
"I think this is a challenge to the judicial system," Turner explains, "[There] is no vacancy. If he nominates somebody, it creates a situation with a future Senate appointing a nominee of a past governor, which questions the integrity of the whole court. So there a lot of issues here that are important to our state."
Rutland lawyer Peg Flory is the head of the state's Judicial Nominating Board. Flory, who is also a state senator, says her board determined that there is a vacancy in terms of its work to seek candidates for the court.
Twenty people applied, and the board held a series of interviews. It concluded that six applicants met the standard of being "well-qualified" for the court.
Flory says her board did not want to wade into the legal questions surrounding the issue of the governor's authority to make an appointment, and she says there's no national precedent to guide the board.
"Some [states] have decided one way, some have decided it another way. So it's unclear." — Sen. Peg Flory, Vermont Judicial Nominating Board chairwoman
"This has happened in some other states that have similar wording in their constitution or statutes," Flory says. "And some have decided one way, some have decided it another way. So it's unclear."
Jared Carter, an assistant professor at Vermont Law School, says he thinks the Vermont Constitution is pretty clear on this subject.
He points to Chapter Two, Article 32, which states, "The Governor with the advice and consent of the Senate shall fill a vacancy on the Supreme Court."
Carter says it's reasonable to conclude that a vacancy exists now.
"When the Constitution is clear in terms of the roles and powers of different branches, the courts tend to tread very carefully in terms of injecting themselves into that process, and the Vermont Constitution is clear," he says.
"I do think the court wants to deal with this before the new governor is inaugurated and takes office because at that point the ship would have sailed." — Jared Carter, Vermont Law School assistant professor
Carter says it's critical that the Supreme Court rules on this case before Shumlin leaves office.
"I do think the court wants to deal with this before the new governor is inaugurated and takes office, because at that point the ship would have sailed," Carter says. "We need to figure out who has the power to appoint this vacancy that's going to be actually happening in the spring."
Carter says it's also possible that the Supreme Court could dismiss the case if it finds that Rep. Turner doesn't have the legal standing to bring this challenge.
That's why Caledonia Sen. Joe Benning has also filed a petition with the Court.
Benning believes a member of the Senate would have standing because the Senate will ultimately vote on any prospective nominee.
The Supreme Court hearing is set to take place Tuesday, Jan. 3 at 1:30 p.m. in Montpelier.
